Bramlette v. Ellington

Opinion by Judge Coeer: At the common law a vendor had a lien on' land sold until the purchase money was paid. By Sec. 26, Chap. 80, Revised Statutes, it was declared that where any real estate should be conveyed, and the purchase money, or a part of it, remained unpaid, the vendor should not thereby have a lien for the same, unless it was expressly stated in the deed what part of the consideration remained unpaid. The deed before us shows that one of the grantors owned two-thirds and the other one-third of the land, and that notes were executed to each for his interest, and how much was due to each. The effect of that was that each retained his lien on the interest he had conveyed. But by express stipulation “they retained a lien on the land until the whole purchase money should be paid,” and it is contended that thereby each acquired a lien on the interest conveyed by the other. We do not think so. They retained a lien. This presupposed that a lien already existed. Such was not the fact; each had a lien upon his own share, but he had no lien on the share of the other, and could not retain what he never had. This results necessarily from the fact that stating in the deed what part of the purchase [381] money remains unpaid merely preserves a lien already existing, and does not create a lien. When the parties retained a lien they must be understood to have referred to the lien created by law, and not to have intended to create a new lien. Hargis & Nowell, Reid & Stone, A. Duvall, for appellant. R. Gudgell, Ross & Kennedy, for appellees. It is true this construction renders the stipulation that a lien is retained superfluous, but if we take the language as we find it, it admits of no other reasonable construction, and between giving a stipulation no effect and giving it one the language does not reasonably admit of, we must choose the former. Judgment affirmed. Breckinridge & Shelby, W. C. Otven, for appellant. Hardin, for appellee.